The initiative process is notably a problematic one. To be sure, initiatives provide a valuable tool for citizens and interest groups in the 24 states that permit them, allowing them to enact laws that the state legislature either can’t or doesn’t want to address. At least some evidence suggests that in states that have the initiative, public policy adheres more closely to citizen's preferences.
But initiatives carry a lot of baggage with them as well. They tend to be briefer and easier to understand than most laws generated by state legislatures and Congress, but that simplicity can create challenges down the road. Just to give a few examples:
- Colorado’s Taxpayer Bill of Rights (TABOR), passed in 1992, created simple limits on the growth of government spending based on inflation and the state's population, but didn’t really account for recessions, resulting in the state suffering substantial shortfalls at the very moment its residents are most dependent upon it for help.
- California’s Proposition 98 mandated that the state spend more than a third of its available budget on public education, a commendable enough statement of principle, but one that ends up gutting the remainder of the budget in lean years.
- Colorado's marijuana legalization initiative in 2012 was pretty straightforward and apparently is being implemented well. But the fact that it was passed as an amendment to the state constitution makes it very difficult to alter, which is troubling when lawmakers try to address problems associated with edibles or impaired driving.
We also know that, despite the rhetoric, initiatives are not necessarily the creations of “the people.” One person’s citizen initiative is often another person’s special interest power grab. Well-heeled groups can sometimes place initiatives on the ballot simply by buying signatures; some gatherers can make several dollars per valid signature.
Just because something gets on the ballot doesn't mean it will pass, though, as advocates for Denver's Extraterrestrial Affairs Commission found out. And, sometimes, that's the point: California lobbyist Artie Samish was famous in the mid-20th century for, in part, undermining initiatives he didn’t like by placing competing initiatives on the ballot. The confused, annoyed electorate tended to respond by voting them both down.
Initiatives tend to be briefer and easier to understand than most laws generated by state legislatures and Congress, but that simplicity can create challenges down the road.
So what’s the best way for the initiative to be used? How can it be harnessed to positively affect public policy without some of the downsides it usually brings?
Events last week in Colorado offer an interesting model. Governor John Hickenlooper (D) had been in a pickle for months on energy issues, facing pressure from the energy industry to allow further natural gas and oil exploration but pressure from environmental activists to limit the use of fracking (or hydraulic fracturing) to extract these resources from the ground. Congressman Jared Polis (D-Boulder) had helped organize two initiatives to limit fracking. These initiatives were fairly straightforward and could have been damaging to the energy industry. The energy industry, meanwhile, was backing two other initiatives that would have limited the ability of local governments to restrict fracking. The political battle between these initiatives was already beginning to heat up, even though none of them were yet officially on the fall ballot, and the campaign would likely have been among the costliest in state history.
Last week saw a deal brokered between Hickenlooper, Polis, and key allies in the energy and environmental communities. Hickenlooper announced the creation of a state commission on fracking focused on reducing land-use conflicts related to energy production. This will likely result in legislation in next year's session of the state legislature. In exchange, the four initiatives were withdrawn.
In essence, the initiatives acted as “the gun behind the door.” Voters never got to weigh in on them, but the chance of their passage forced key politicians to develop a compromise solution and move forward. In this case, the initiatives unclogged the lawmaking process by serving as a threat of what might happen if the state government failed to act.
Perhaps this is the best way for initiatives to be used, serving as a threat and compelling legislators to act, but never actually getting to the ballot. Like nuclear weapons, they may be most effective by never being used.